HKSAR v. MYAGMARJAV ENKHZUL

DCCC 102/2019

[2019] HKDC 1033

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 102 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to 1 count of theft, 3 counts of obtaining property by deception and 2 counts of attempted to obtain property by deception.

Facts

Charges 1 to 4

2.  On 31 October 2018, the defendant stole 3 credit cards, namely 1 American Express credit card (“AE Card”), 1 Standard Chartered MasterCard (“SCB Card”) and 1 Citibank VISA Card (“Citibank Card”).  Then, she made the following purchase:-

(1) At 1751 hours, she used the SCB Card to purchase 1 iPhone XS Max with 512 GB storage capacity;

(2) At 1753 hours, she used the AE Card and purchased 2 iPhones XS Max each with 512GB storage capacity; and

(3) At 1756 hours, she used the Citibank Card and purchased 2 iPhones XS Max each with 256GB storage capacity.

3.  True owner of the credit cards was informed of the said purchases between 1753 hours and 1758 hours on the same day and immediately notified the respective credit cards issuers and stopped the credit cards.

Charges 5 to 6

4.  At about 1820 hours on the same day, the defendant attempted to use the AE Card to purchase a luggage at $6,890 at another shop.  However, the cashier felt suspicious and unknown to the defendant, a report was made to the police.  The attempted purchase by AE Card was unsuccessful and then the defendant handed the SCB Card for payment.  The cashier did not try to process the payment.  Ultimately, the defendant left at around 1828 hours.  The defendant was subsequently arrested by police and all the 5 iPhones were found from the defendant’s rucksack.

Background of the defendant

5.  The defendant is now 32 years old.  She was born in Mongolia and received education up to high school.  A few months after her arrest, she gave birth to a baby girl, who is now taken back to Mongolia by defendant’s mother.  Because of this case, the defendant’s husband deserted the defendant a few months after her arrest in Hong Kong.

6.  The defendant’s father passed away in March 2018.  The defendant’s mother, who is now living on pension and has been suffering from chronic liver disease since 2014, is now the sole taker of the baby girl.

7.  The defendant has a clear record in Hong Kong and Mongolia.

Mitigation

8.  I am told by Mr Ng, counsel for the defendant, that the defendant arrived in Hong Kong 1 day before the offence day.  She was a merchant.  She just picked up the credit cards in a shopping mall and out of greed, she committed the offence.

Sentence

9.  Sentences passed by the courts must incorporate a substantial element of deterrence to deter people from using cards which do not belong to them or false or forged credit cards to make what might be seen to be easy money.

10.  In HKSAR v Li Chi Yat, CACC189/2018, the Court of Appeal said, “It is important to emphasise that the sentencing authorities in relation to credit card fraud cases recognise that small-scale credit card offences cannot be subjected to strict guidelines because they can vary significantly in a number of ways and that a starting point of 3 years’ imprisonment or less would be appropriate.” (para 21)

11.  I accept, as suggested by Mr Ng, that the defendant committed the offence by making use of the credit cards she picked up on the floor of a mall. She was not a party to any syndicate and there was no premeditation.  In other words, she was an opportunist.

12.  The total credit limit of all the credit cards stolen by the defendant exceeds $500,000.  There is a need to protect the integrity of the credit card system and the potential for loss is great and often will be far greater than the actual loss.  Although I accept that the defendant was an opportunist, taking all the circumstance into account, it is not a simple case of “theft by finding”.  After she picked up the credit cards, she made use of them to purchase a total of 5 iPhones, with a total value of $59,095, within minutes and then attempt to further purchase a luggage with a value of $6,890.  It is obvious that iPhones have a second hand market value.

13.  Mr Ng submits that resembling facts of this case can be found in another case: HKSAR v Ben Salem Hassen, CACC45/2017, in which the Court of Appeal affirms a sentence of 3 years and 6 months is the appropriate starting point for offences involving the use of stolen credit cards to purchase properties with a total value of more than $50,000.

14.  I read the mitigation letter by the defendant and her mother and accepts that the defendant is now remorse for what she did.  A usual one-third discount will be given.  However, I do not accept that her personal background and her mother’s health warrant any further discount in sentence.

15.  Taking into account of all the circumstance of this case, for charge 1, I adopt a starting point of 9 months’ imprisonment and reduce it to 6 months’ imprisonment for the guilty plea.  For each of charges 2 to 6, I adopt a starting point of 2 years and 6 months’ imprisonment and reduced it to 1 year and 8 months’ imprisonment each.

16.  Taking into account of the totality principle, I consider that an overall starting point of 3 years and 3 months’ imprisonment is appropriate.  Giving the one-third discount for the guilty plea, the defendant is sentenced to 2 years and 2 months’ imprisonment.  To arrive at that, I order:-

- For charge 3, 2 months’ imprisonment to run consecutively to charge 2;

- For charge 4, 2 months’ imprisonment to run consecutively to charges 2 and 3;

- For charge 5, 2 months’ imprisonment to run consecutively to charges 2, 3 and 4;

- For the rest of the charges, all sentences to run concurrently.